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Dealing with New Forms of Union and Non-Union Labor Protests: Badges, Walkouts, and Other Labor Demonstrations

Unions and organizing are enjoying a bit of a renaissance.  In this webinar, Jim Wimberly provided an update on recent developments and practical pointers on what to look for in terms of protected activity, requests from organizers for access to the workplace, expressions of union solidarity, and defensive tools employers can deploy.

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Webinar Transcription

James W. Wimberly, Jr. (00:00):
Good morning or afternoon everyone. I never know what to say in that regard because it's noon my time, so I don't know whether that's good morning or good afternoon, but it's nice to have you on for this topic. Dealing with new forms of union and non-union labor protests. I got into labor and employment law many years ago because of my interest in the subject matter. And I'm particularly interested in the subject matter we're gonna talk about today because employees have various ways of protesting. And to give you a little history of my personal interest in protest I, I wrote a lawyer article about it many years ago in the sixties in the South Carolina Law Review. And I had some of the greatest experiences in my life, or the opportunity to bring some plaintiff's cases against labor unions. And I won a couple of cases in excess of a million dollars.

James W. Wimberly, Jr. (01:11):
And it was really fun being on the plaintiff side for once because management as we are, is usually on the defense side. And the kind of cases I had against unions dealt with strike violence and secondary boycotts. And they're all kind of complicated rules there as to what constitutes protected free speech and what constitutes coercive actions that are not protected by the law, and therefore can be the subject of discipline or damage actions. And this subject is very current today. Look at what's happening at many college campuses. Let's take Columbia. Their students are protesting by camping out on Columbia's property. And and then at one point took over a building. I remember, believe it or not, I was at Harvard University back in the late sixties when students did the same thing in reference to the Vietnam War. So anyway that's background to the subject.

James W. Wimberly, Jr. (02:30):
My feeling ladies and gentlemen, and by the way, there will be time for questions at the end, and if you have questions during the session, let us know as well. But there definitely will be time at the end. My premise is that there's some unrest in the workplace today, and you know, why is there unrest? I think workers have been concerned very much about inflation. And we had the pandemic where we were bending over backwards and doing things that we ordinarily wouldn't do to attract and retain employees. And end of the pandemic, we let things go back to norm. We got a little stricter. During the pandemic wage rates went up rapidly at some plants. They, some companies even called it Covid Pay because they gave extra monies to reward workers for coming to work during the pandemic.

James W. Wimberly, Jr. (03:39):
And workers became very scarce and certain protests occurred. I like to tell war stories. So, during the program today, I'm gonna tell you some true war stories, but we're gonna talk about how employees protest in or around or in connection with the workplace. What kinda issues are we gonna discuss? Well, employees can protest and make their position known by wearing badges or, or things on their clothing, posting things in or around the plant, walking out as a group sit-ins. You know, if you ask what sit-ins are, that's when you don't leave the property. You just sit in and just wait until your demands are met. I think the Columbia students did something like that when they took over the administration building. They just sat in there and said they weren't leaving, and then they expressed themselves on social media. And there a host of ways they can conduct demonstrations.

James W. Wimberly, Jr. (04:56):
And what's so complicated in today's time is whether some of these protests are based on political activities in some way. For example, are the protests over the Israeli-Palestinian issue of those protected activities, at least as far as work is concerned? Or are they political that, you know, normally political activities at work can be prohibited, but you will see in this presentation that there's some exceptions to that. So I'm suggesting to you this is a little bit complex. It's very complex whether what employees are engaged in, just like the students in Columbia, whether they're free speech or whether they're coerced. Coerced is sort of a term for forceful overly force. And the results may vary, whether it's a sit in a trespass, a defamatory act. What is a defamatory act? It's normally considered a statement, the oral of written that harms the reputation of another and is untruthful.

James W. Wimberly, Jr. (06:23):
Whether it creates work disruptions or whether it violates legitimate work rules. And notice, I underline the word legitimate because what's legitimate work rules today is very much a issue. Let's talk about badges now. Now, badges are normally what a person wears on their body. It may involve a mask, a pen, a button, a stick on, or maybe some shirt that reveals some protest issue. But I'm gonna just call 'em all badges. And the first issue I want address, because it's one of the easiest to address, is pro-union badges. We want a union or something similar. We want better wages, we want better working conditions. Those type badges at work are normally allowed under the law.

James W. Wimberly, Jr. (07:34):
Yes, there's some exceptions, but they probably aren't applicable to many of you on this call. For example, if you have a selling floor there may be some restrictions on people selling on a selling floor wearing such badges. If you're in a healthcare facility, in a healthcare area, there may be restrictions. Can you have any restrictions in terms of company work rules? Possibly, I'll talk more about that in a few minutes. But the general concept is that pro-union or similar concerted protests. Now, what I mean by concerted protests, two or more people reaching out to others, acting with the support of others concerted generally means two or more. A personal gripe is normally not considered a concerted protest. In any event, it is rare when a company can prohibit pro-union or similar badges worn by workers on the job. They're considered under the law, not really disruptive. Yes, there have been a few cases where dress codes have been upheld if they're enforced on a non-discriminatory basis, but in, in most plants or operations that I see we have very loose dress codes. And they don't really normally cover things like wearing political or protest activity on gars.

James W. Wimberly, Jr. (09:23):
But as I indicated earlier, the Labor Board, the NLRB, whatever you want to call it, they don't normally protect political activity of social activism that doesn't implicate the workplace. And so if we were to have a protest at work by some employees that were pro Israeli, some that were pro-Palestinian, my guess is that would be deemed to not implicate the workplace and therefore not be protected against employer discipline. So that's just a general rule, but there are exceptions. Most of the current case law on badges comes from Black Lives Matter badges. And the question is can an employer prohibit Black Lives Matter badges at work under its dress codes or other doctrines not to engage in allowing political activity or social activis, viv, or those type things to be worn and addressed at work? The cases are across the board. The first round of cases, I will say, held that employees did not have the right to wear Black Lives Matter badges at work because it was social activism or political didn't really relate to working conditions.

James W. Wimberly, Jr. (11:04):
And if the employer enforced policies against the BLM badges on a non-discriminatory basis, what I mean by non-discriminatory basis, well one of the first cases I ever tried as a labor lawyer, I'm not going to tell you what decade it was. I was not the first chair. I was a second chair involved in employees that were posting Pro-Union slogans around the plant, and they were fired for it. And they contended that whatever policies the company had on prohibiting postings around the plant or on people's person were discrimin enforced against union type information. And they brought in witnesses to testify that employers or employees put all kind of stickers on their person or what have you. Maybe it was for sports team whatever, any number of things, and it was allowed. So one of the reasons Black Lives Matter badges are often litigated is whatever rules or policies the employer has can be attacked on the basis the employer doesn't consistently and evenly enforce those kind of rules.

James W. Wimberly, Jr. (12:36):
The other issue though is whether as far as the Labor Board is concerned, and, and, you know, I'm gonna talk about the Labor Board a lot because the Labor Board is where most of the action is on these issues. Why most of the cases at the Labor Board, it costs someone nothing to file an unfair labor practice charge against an employer. It's basically a free process. The NLRB investigates it, prosecutes it, and possibly bring about reinstatement with back pay if someone has been discharged at no expense to the employee. So it's real easy to file and bring cases. So the, the Labor Board in Washington, the, the General Counsel of the Labor Board who's a chief prosecutor, has long contended that we're in a Black Lives Matter badge is concerted activity because although it may have started from the death by the police in a certain matter it involves broader concepts of racial discrimination in society and the workplace, and therefore wearing Black Lives Matter badges. The General counsel contended at the Labor Board also addresses discrimination in the workplace. Well, the Labor Board in Washington for the first time ruled on this issue less than a month ago. And here's what they said. This is a bit complicated. So follow me on this. They said that the wearing of Black Lives Matter badges, that is an outgrowth of discrimination complaints at the facility, is concerted activity. And the employer can't prohibit that activity.

James W. Wimberly, Jr. (14:35):
They did not make a ruling that in all situations the wearing of Black Lives Matter is concerted protected activity. It had to be an outgrowth of other discrimination issues at the plant that had already been raised. So there you go. That's what the Labor Board says about it. So that's why I put in my conclusion on Black Lives Matter badges, that it depends on whether something is an outgrowth of prior discrimination complaints that work and, or, or whether there is discriminatory enforcement that we normally don't enforce rules against badges, et cetera. And then we come down on BLM. Now, one of the reasons use of badges is so sensitive to me is, let's say many of us may react, then what's wrong with the Black Lives Matter badge? You know that's really nothing to be upset about maybe, but what about if employees come in and hear wear badges that say, white Lives matter too, or Blue Lives Matter, or All Lives Matter.

James W. Wimberly, Jr. (15:52):
And even worse, suppose people come in with Nazi symbols or confederate symbols or a lot of religious belief symbols, you know, are we throwing the, the baby out with the bath water? Well this is a troubling issue to me. And you know, I I'm gonna refer to the interrelationship between politics and the workplace. Somewhat. Suppose somebody starts wearing MAGA stuff suppose somebody comes and wears you know, if you're such and such, you need to vote for Biden. Do we want all this paraphernalia being worn in the workplace? So there, there's a cons, legitimate concern here that beginning to allow some types of badges may open the door to other types of badges, and that makes it more complicated for us. I do want you to know that dress codes may not always be legally determinative. Does it help to have a well-written dress code? Yes, if it's illegally written, it hurts, <laugh> depends upon what it says. So the results may differ in these types situations, but I wanted you to be aware, the general concept here, that if employees can relate the wearing of badges to certain work conditions or discrimination complaints, then the Labor Board may give them the right to do so. That's the one sentence summary of what I've just said.

James W. Wimberly, Jr. (17:51):
What about postings? People post things around the plant. I've got a union campaign going on right now, and somebody posts pro-union information in the bathrooms. Management patrols 'em every now and then tears 'em down. They don't allow postings around on the walls everywhere. I even looked at its rule and it was a lawful one in the handbook. But, so the general rule is that an employer has a right to control or limit employee postings things at its facility. The main problem is not the employer's right to do it, but are we discriminary, enforcing whatever rule of policy in itself exists? I gave you the description of the first NLRB case I ever tried a second chair. It was a prohibition of we're union insignia and or postings. And people were warned about it, fired for it, and they contended at the trial that those type postings were allowed on the plant, and we were only using it against union postings. That's a problem. So what many employers do is have a rule that says postings are prohibited. The plant employees wishing to post must confine their postings to a single board. And while that, you know, you can have a, a, a provision about unlocking the board if you want to. So having a legally written policy on postings may be helpful. Again, if it's properly worded, we'll say more about that in a minute.

James W. Wimberly, Jr. (19:58):
So how do we determine whether political speech and social commentary, whether it's Black Lives Matter, white Lives Matter, blue Lives Matter I'm from Israel I'm from the Palestinians. All those things. How do we tell whether employees have a right to where materials supporting those causes in the workplace? Well, here, here's some questions that can be asked. Is there any connection between what they want to do in working conditions? If so, how strong is the connection? Does it relate to issues previously raised by employees? Have employees been discussing this subject? So it's an open question right now. Whether a company can restrict or have a rule pol restricting political speech in the workplace in the way of postings, badges, et I could tell you this.

James W. Wimberly, Jr. (21:09):
I'm gonna give you a potential solution to this issue, and I'm gonna give it to you more than once. A little background before I give you this solution. And I'm not saying it is a simple solution that may be the only solution we've got. We don't really know how far the labor board's gonna go. One person wrote an article, and I like to quote it, it said, the Labor Board is destroying all company rules. One rule at a time. <Laugh>. While that is a slight overstatement, there's also a lot of truth in it. We'll talk more about that in a minute. But the labor, the board considers any company rule or policy that chills legitimate union or concerted activities, chills, deters it is unlawful. And that any discipline under that unlawful rule is also unlawful. And to make matters even worse, they say that any past discipline we've carried out without reference to whether it's within the last six months or not, which is the statute of limitations has to be wiped clean from the books that at least that's their enforcement policy on illegal over overroad company rules.

James W. Wimberly, Jr. (22:30):
So here's my idea. When you get to a rule that you just sensed as controversial, add at the end of the rule, provided that this rule will not be interpreted or applied to activity protected by Section seven of the National Labor Relations Act, that's what we labor lawyers or employment lawyers call a disclaimer. And the Labor Board has left us guessing what we can do to protect ourselves, but I believe there's certain rules more subject to attack than others. I'm gonna talk about some of 'em. It's impossible for me to address all of 'em in this meeting, but I'm gonna address some of 'em. And when we get to those controversial rules, it might be good to add a disclaimer at the end of the roof. Now, now the disclaimer is that this rule will not be interpreted or applied to activities protected by Section seven, the National Labor Relations Act.

James W. Wimberly, Jr. (23:38):
It's not enough to put it at the end of the handbook or at the beginning of the handbook. It's gotta be right there with the rule. Next point, where does all this craziness about rules come from? It comes from the NLRB case known as Stericycle. And Stericycle says that rules company rules or policies are unlawful, even if they don't expressly restrict employees from union or other concerted activity. As long as an employee would read it is chilling such activity, meaning deterring such activity. What the Labor Board goes on to say is the rule must be narrow to restrict legitimate and substantial business interests. And the ambi ambiguous rules are construed against the employer, meaning they're overbroad and unlawful lus. Take simple examples, and you're not gonna believe this next PowerPoint of what I'm getting ready to say. You're not gonna believe it, but it's true.

James W. Wimberly, Jr. (24:52):
The Labor Board says the most simple civil rules, people being nice to each other are overroad illegal. How do they come to that conclusion? Well, you'll, you'll laugh at their rationale. They say that when employees are supporting a cause, be it a union or supporting a, a pay raise or some other conservative activity, they might be disrespectful in supporting it. They might harass a coworker to sign a union car. They might harass a coworker to sign a petition saying, we want a wage increase. And yet that's a legitimate activity for union or concerted purposes. In other words, the Labor Board doesn't come out and say it directly, but I'm summarizing the, the gist of what they say is that employees are allowed to be somewhat disrespectful and unprofessional in supporting legitimate causes, like forming a union or getting a raise of better working conditions, safety, et cetera. So a rule that Broad would kill him from doing that.

James W. Wimberly, Jr. (26:15):
For example, I approach an employee every day on the job, ask him to sign a union card. I'm a coworker. If I, once I approached that employee the second day of the third day and ask him to sign the union card, when does that become illegal harassment? Well, <laugh>, I'm not sure there's an answer to that one, but that's why the Labor Board says having a rule like that prohibiting harassment may be over broad and thus illegal. Now, you may come back and say, Jim, we know this federal policy to prevent harassment on the job. What do you mean we can't have a rule prohibiting harassment? The short answer is the rule has to be specific. All our rules have to be specific according to the Labor Board. And harassment has to be defined as lud comments, obscene language requests for sexual favors, et cetera.

James W. Wimberly, Jr. (27:25):
It has to specify what we mean by harassment. And the harassment has to be limited to matters protected by the Civil rights laws. So if we just have rule prohibiting harassment, that's overroad illegal. And according to the Labor Board, the enforcement of such an overroad and illegal rule is itself illegal. And anybody fired under such an overbroad illegal rule deserves to be reinstated with back pay, as do the coworkers who were similarly fired or treat. I, I know it's hard to believe, but that's what they're saying. So the specificity here required in rules is very important. Let's take confidentiality that's not listed up here, but that's the next one that comes to my mind. Labor Board says we can't have a rule that prohibits confidentiality of company information. Why? Because that would suggest or scare employees to say, I can't tell my coworker how much money I make. I can't ask my coworker how much money they make. That's considered overboard. But if you have a specific rule on confidentiality that narrowly defines it as covering business secrets and defines what confidential information is, it's probably okay. Next PowerPoint.

James W. Wimberly, Jr. (29:02):
Now lemme tell you some other scary things. If you commit an unfair labor practice in, in a union campaign, there's a new N-L-R-B-B ruling in Cmax that basically says any unfair labor practice can bring about a mandated card check in, which if a union shows the Labor Board, they have authorizations for majority employees, you can be ruled to have to recognize the union even though there's no election or even though the union lost the election. Does that sound wrong to you? I agree, I think it's wrong, but that's the current labor board of law. This is the most pro-union administration, most pro-union Labor board we've ever had in the history of the United States. No question about it. The very first thing the new president did five minutes into office was to fire the general counsel of the Labor Board. Never been done before in the history of the United States because the president wanted to appoint a pro-Union General counsel immediately to change the labor laws in this country to make unionism easier to acquire.

James W. Wimberly, Jr. (30:23):
They've even gone so far as to say things like the general counsel has. The Labor Board is not that a person subject to the Labor Act can't be required to sign a non-compete rule. Can't be required to say they won't have outside employment outside their job because it de tears people from going and bettering their working conditions through other employment. That's her rationale. The NRB prosecutor. Now, the, the Labor Board itself hadn't ruled on that, but that's her position. That's also the Federal Trade Commission's position that just came out. Was it this week or last week? It was end of last week. I don't think that Federal Trade Commission rule on non-compete rules is gonna ever see the light of day. But nevertheless, it's out there. So you know what the trends are. So the moral to what I'm saying right now is the company rules or policies, even if unwritten have to be legitimate and clear. And in affel situations, I would ask a disclaimer that such a rule will not be interpreted applied to prohibit activity protected by section seven of the NLRA. Now, I'm gonna give you some perspective to this. I just rule re reviewed a company handbook. It was pretty well written. It was a long handbook.

James W. Wimberly, Jr. (31:57):
It didn't have the longest set of work rules I've seen. I would call it a very average length of work rules. And I suggested on several rules, they add this disclaimer to that particular rule and out of I'll say 30 rules maybe it was 20, 20 or 30 rules, I suggested they add that disclaimer at the end of about 3, 4, 5 of 'em. So this isn't something that has to be added to every rule. It's only a small portion of the rules that are legally suspect. Next. Now, how does all this apply to social media?

James W. Wimberly, Jr. (32:48):
Well, I've already tried to explain that employees have the right to join together with coworkers to improve their working conditions, their lives at work, including their use of social media. They had the right to discuss these kind of things among coworkers. They had the right to tell coworkers what they make, what others make in the plant, what people down the street make. This is all considered legitimate. You might call 'em privacy rights. And for example, one of the most basic illegal rules is that the employee will not disclose his pay to another employee. That's a blatantly illegal, at least is applied to people covered by the Labor Act, which normally include excluding management. So they not only have the right to address and discuss these things among themselves on social media or otherwise, but they have the right to raise work-related complaints. They have the right to, to put on social media that their discriminate, their supervisor discriminates against females. They have the right to say that they've seen harassment at the workplace, sexual harassment, et cetera. Racial harassment, age harassment, disability harassment. This is concerted activity under the Labor Act that's been around since 1935. Okay?

James W. Wimberly, Jr. (34:25):
But to be legally protected what an employee says to another on social media or otherwise, let's have some relation to group action or prepare for group action or bring about a group complaint to the attention of management. So there, there are really two elements to concerted activity on social media or otherwise. Number one, it must relate to work in some way. Number two, it must involve others and not just the same employee. 'cause A personal gripe is not considered protected activity. Now the exceptions to this, right? To engage in concerted activity. Yeah. there are certain limits to statements that are egregiously offensive or knowingly false or publicly disparaged the employer's product of services without relating the complaints to a labor controversy. Some call these things disloyalty. I don't like that term because it's too broad a term, but I do want you to know there are some limits to what an employee says about work on social me media, but not many. That's why when I get calls a lot that so and so spoke badly, their supervisor on social media, we want firm. I have to get into the nitty gritty. That's powerful.

James W. Wimberly, Jr. (36:01):
But before I get into this next PowerPoint, let me tell you a real interesting case that arose that Google, one of their employees wrote social postings to the effect that Google's affirmative action program discriminated against white men. And he went on and on in this post-it, talking about how Google's policies discriminated against white men under their affirmative action programs. And, but he did include a phrase in there or a paragraph that this guy was well educated. He, I think he had a PhD. It was a candidate for a PhD that women weren't as suitable as men in certain type occupations. You know, you've heard things that women's don't do as well in math as men. I don't know whether that's true or not, but it was that kind of thing. Well, he got fired and there were two things very unusual about the firing.

James W. Wimberly, Jr. (37:26):
One, the firing was by the president of the company in a letter, which is a good idea. You know, that doesn't sound very normal when the president of the company does the firing. And you wanna show your non-discriminatory. So why the president of the company do the firing? But secondly, the president of the company must have paid a lawyer pretty penny to write that termination notice 'cause it was Brandon. What it said is that many or most of the things you said in your posting were legitimate statements under applicable law and we don't quarrel it. But when you suggested that women were not as well suited to do certain types of work, you crossed the line and you violated our non-discrimination policies and you're fired.

James W. Wimberly, Jr. (38:21):
Well, this person at Google went after Google every way, shape or form N-M-R-B-E-O-C, everywhere else. He lost every case because even though many of the things were said were protected from discipline, some of the things that said were not. So that gives you a hint when you want to fire or take action against an employee by something they've said, look at the whole thing and be very careful what the employee is being disciplined for IE you need an experienced employment lawyer to help you draft it. What about interra Palestinian issues like that's going on on so many college campuses? The present suggestion or guess is that disagreements on a contentious international conflict aren't protected activity importance of having a legally reviewed social media policy. Another problem is that some states limit an employer to retaliate towards an employee for lawful off-duty activities.

James W. Wimberly, Jr. (39:37):
And what you do might be consistent with federal law, but inconsistent with state law. What about using company equipment? This is a very contentious issue, whether an employee can use company email systems, for example, to communicate in favor of a union or about other concerted activities. The current rule is that you can limit use of company equipment to company business. However, that rule is likely to be changed under the current administration. They're real excited about changing that rule. And what they want to do is go to the rule. And I would expect the rule to be under the end of, till the end of the current administration, at least that an employee can engage in concerted activity using the company equipment as long as it's during non-work time. You can prohibit this non-work activity during non-work time if you are consistent in your enforcement of that rule. Next bullet point.

James W. Wimberly, Jr. (40:54):
Okay, I've already been over this point. Considerations applicable, whether an employee should be disciplined for a posting, whether on social media or otherwise, having both protected and not legally protected portions. My answer to that was you better discipline 'em for the unprotected portions and be crystal clear about that. 'cause If you discipline 'em for the posting as a whole, your action is probably gonna be viewed as illegal. Next bullet point. What about sit-ins and walkouts? A walkout is basically a strike. Our federal labor laws protect the right to strike, but the compromise they make is an employee can't be disciplined for striking, but can be permanently replaced unless it's an unfair labor practice strike. This is a subtle but important difference, and I can't tell you how many situations I've had come up in my career where a company has fired a number of people. I will tell you this short war story. I got a a little faster because I'm running out of time. But I had a situation, a large employer chicken processing plant.

James W. Wimberly, Jr. (42:23):
At the end of a break, a department of about six employees do not return to the production line, but remain seated in the break room chicken comes to the end of that line. There's nobody there to move it forward, so it falls out on the floor. Management hears about this, says, where are these department employees? Somebody says they're in the break room, goes in there and starts talking to 'em in the break room. This was near the end of Covid. They wanted a race. They said, we ain't going back to work. There was one person that did the talking until we get a raise that we think we should get.

James W. Wimberly, Jr. (43:11):
This conversation or confrontation, if you will, goes on for 30, 45 minutes. The employer's manager who had headed this conversation on the company side doesn't say the magic words, but he does say you must go back to work. They refuse to go back to work. 30, 45 minutes into this conversation, they're fired for walking off the job. Unfair labor practice charges are filed. I realized right quick that this was a very dangerous play case for my client because number one, employees as a group have the right to strike. And that's exactly what these people did. They would probably call it a walkout, probably the plant probably would too. Walked off the job as a walkout, a concerted walkout. That's a strike. But I argued to the Labor board that you can't walk out without letting somebody know and let the product fall off the end of the line.

James W. Wimberly, Jr. (44:33):
I had some old cases that suggested I had an defense on that basis. I also argued that these employees either had to go back to work or leave the facility. The fact that they sat in that break room for 45 minutes or whatever it was was a sit-in. And even if the walkout is protected, sitting in the plant and not leaving the premises is not. Anyway, I thought I had some pretty decent arguments, but the Labor Board said they were gonna issue a complaint. The Labor board investigator actually agreed with me. They sent the case off to Washington with the new administration and they decided to issue a complaint and we settled the case. So what are the lessons that come out of that story I just told you? All of which is true happened about, I guess three or four years ago on number one.

James W. Wimberly, Jr. (45:34):
A a walkout is concerted is legally protected. The workers can be permanently replaced but not fired. There's a distinction. Secondly, a sit-in is not protected. But in the, the concept of a sit-in is that the employees egregiously refuse to leave the premises. There's a concept in labor law. You gotta work or you gotta leave. You can't do both. So it has to be an egregious ref refusal to leave the premises so that they become, in essence, trespassers. All this calls for getting legal advice as the situation arises. A lot of plants aren't aware of these distinctions. Now, Stryker normally don't get pay or benefits or unemployment compensation.

James W. Wimberly, Jr. (46:28):
I won't get into the exceptions involving jurisdictional strikes. I did cover sit down strikes that are generally prohibited at panel right by the company. Slow downs and partial strikes are not protected. This gets back to the concept that I said before. You either gotta work, you gotta leave the premises. You can't go slow. You can't strike for an hour every day. <Laugh>, I'm gonna take a double lunch break every day. I'm gonna work the rest of the time. That's call a partial strike. Now, in any situation like this, and, and this involves the whole program, ladies and gentlemen, we have to be concerned about not only doing the thing that's legal, but what looks fair to our workforce and fair to customers and consumers. And I remind you all of the Bud Light controversy that's where a company engaged in an advertising venture Bud Light, in which a drag queen advertised their product in some manner and even had it put on a Bud Light can. And a lot of people in the in the country didn't like that. And boycotted boycott bud Beer and they went from the bestselling beer in the country, bud Light to down the road. They're no longer the bestselling beer in this country. And it's attributable to get involved in controversial political related, socioeconomic related issues, words to the Wises.

James W. Wimberly, Jr. (48:27):
So get legal advice and handling sit-ins on these issues and procedures. What else we got there? Oh, I think this is the last PowerPoint. So for those of you that need to leave, we're just about over. What about employees who are off duty? Can they come back and organize other employees for some venture, whether it's a union or working for higher wage or working to improve some form of working conditions or organize some work related matter in general, we can have a work rule that bans off-duty employees coming back to the interior of our facilities, but we cannot ban off-duty employees returning to the employer's grounds outside the facility. They may come back and hang around the parking lot trying to sign up other employees for a union or whatever they're trying to organize. And for any rule we have, the discriminatory application of rules is often a problem if they say We never, never followed that policy or rule except as applicable to union activity.

James W. Wimberly, Jr. (49:48):
Questions? Questions? I really need some questions here. Alright, I'll say I, I didn't cover the issue that might affect you. What about access to property by non-employees? Generally we can prohibit all non-employees from access to our property, but we run into problems of discriminatory enforcement if we allow families and friends to hang around our property. And then all of a sudden a union guy comes around and attempts to hang around the same way, we may have a legal issue now in every situation like that, we'll evaluate it. Whether it's worthwhile to throw the union guy off the property or whether we're in big trouble if we do. Jay, you got any questions?

Speaker 2 (50:43):
Not right now. I mean, you covered pretty much all, especially all the new stuff with the with this, with the Palestinian disturbances and things of that nature. We've been doing pretty good here, I think. Well,

James W. Wimberly, Jr. (50:58):
I I will tell you, even though we've seen this around numerous college campuses, I haven't gotten a lot of calls about it coming up in the workplace. Now, I, I'll tell you an issue, Jay, that did affect our industry, and we haven't had one in recent years, but there used to be some sort of Hispanic Liberation day. It, it, that's not what it was called. But many Hispanics didn't come to work on those days. I guess you could make an analogy to African Americans not coming to work on Martin Luther King's Day or something like that. And maybe there's an issue of whether those type absences are legally protected or not. And that you, you can see some of the issues that come up. Many companies took different approaches to that issue, whether you can just enforce your normal attendance rules in that situation. But there's some tricky issues here, and the Labor Board is not our friend. They will do everything they can to say that employees have the right to improve safety, eliminate discrimination, bring about better pay and better working conditions. And if there are two or more of 'em acting, then that's gonna be protected unless there's some legitimate company policy or practice that limits them in doing so. That those are the issues we've talked about today.

Speaker 2 (52:39):
We, we did have a issue a couple years ago with that Hispanic day thing you were referencing, but fortunately everybody showed up. We tried to be as prepared as we could, but one thing that I've noticed that helps us is if we stay as diverse as we can with our workforce not too many one, one way or the other we don't have as many of those issues come up.

James W. Wimberly, Jr. (53:03):
Well, that's true. And, and certainly the industry you're talking about is one of the most diverse in the country, even in our industry, <laugh>. So it helps, I mean, obviously a segregated workforce either on the basis of race, sex or whatever, you know, is gonna be more likely to receive and have troubles with a discrimination complaint. But even a totally diverse, well, let me just tell you yes, what employer in the United States has per CAPA the most discrimination charges against it? And nobody's even close. Anybody want to guess? Walmart? No. E-E-O-C-E-E-O-C man. They filed discrimination complaints like crazy at the, it's against the EEOC. Now, now Walmart gets so many complaints because the unions hadn't been able to organize 'em. So anything that stirs up trouble for Walmart unions look at as an asset. So they're gonna be looking to badmouth or hurt Walmart, you know, any way they can. But now the EEOC has the most charges <laugh>. Any other questions? Well, let me say this. It's a pleasure visiting with you today. You know that these shows or videos are available online on our firm website and I appreciate your attending. Hope to see you at the next one. Thank you very much and goodbye.

promo graphic, Dealing with New Forms of Union and Non-Union Labor Protests: Badges, Walkouts, and Other Labor Demonstrations
Webinar Date: Friday, May 03, 2024
Start Time: 12:00 PM
End Time: 12:45 PM
Presenter(s): James W. Wimberly, Jr.
James Wimberly
Status: Available On-Demand
Venue: Zoom

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